Beavon Investments Limited v Marlborough District Council

[2012] NZHC 113

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2011-406-000244 [2012] NZHC 113

UNDER  Section 299 of the Resource Management

Act 1991

BETWEEN  BEAVON INVESTMENTS LIMITED Appellant

ANDMARLBOROUGH DISTRICT COUNCIL Respondent

Hearing:         30 January 2012 (Heard at Wellington)

Counsel:         D J Clark for Appellant

P Radich for Respondent

Judgment:      10 February 2012

JUDGMENT OF MILLER J

Introduction

[1]      Under the Wairau/Awatere Resource Management Plan a landowner in the Rural 3 zone may build a “family flat” associated with a residence standing on the same certificate of title.  A family flat, it is agreed, is a self-contained residence with usual amenities, including a kitchen, which is used by the landowner’s family.  The question on this appeal from the Environment Court is whether it must also form part of the principal residence.  The Marlborough District Council maintains that it must. Beavon Investments insists that it may be a separate building.

[2]      On this controversy turns the future of a building on Beavon Investments’

property at 100 Rowley Crescent, Blenheim.   Although called a sleepout, it is a second and separate house which lacks only a kitchen.  Beavon Investments wants to

BEAVON INVESTMENTS LIMITED V MARLBOROUGH DISTRICT COUNCIL HC BLE CIV-2011-406-

000244 10 February 2012

install a kitchen and use the building as a family flat, a permitted activity.   If the Council is right, the building will become on installation of the kitchen a second residence, a discretionary activity which requires a resource consent.

The facts

[3]      The property is situated in the Rural 3 zone and comprises 1.6440 hectares on one certificate of title.  The two houses stand about 70 metres apart.  The newer of them was moved onto the site in 2003, the Council having consented on condition that the original house be removed within six months.   The then owners did not remove it.  In May 2007 they were permitted to use the original house as a sleepout on condition that they remove the kitchen.  They did not comply with that condition either, but Beavon Investments complied when it bought the property in 2010.

[4]      Beavon Investments soon sought resource consent to subdivide the property into two allotments, each containing one of the houses.  That was refused.  It then told the Council that, having no use for a sleepout, it would restore the kitchen for a family flat.  The Council resisted, so Beavon Investments sought a declaration in the Environment Court.

The District Plan

[5]      The Plan, generally speaking, limits a landowner to one “dwelling house” per certificate of title in the Rural 3 zone.   A dwelling house is a “single residential unit”, and “residential unit”:

means a residential activity which consists of a single self-contained housekeeping unit, whether of one or more persons, and includes a holiday home, accessory buildings and a family flat.  Where more than one kitchen facility is provided on the site, other than a kitchen facility for a family flat there shall be deemed to be more than one residential unit.  For the purposes of  this  definition a  residential  unit  shall  include  any emergency unit  or refuge.

[6]      “Family flat” is not defined, except in the incomplete sense that it must be a single self-contained housekeeping unit.  Nor are “kitchen” and “sleepout” defined.

It is not in dispute that a kitchen is a room where food is prepared and cooked and contains cooking appliances and washing facilities, while a sleepout is a structure associated with a residence but usually detached, to which people retire to sleep.  A sleepout may have toilet facilities, but not a kitchen or laundry.

[7]      For more than 20 years the Council has tried to protect the agricultural uses and rural amenity values of flat rural land in the Wairau Valley against an insistent demand for subdivision.  It maintains a minimum lot size of 8 ha in the Rural 3 zone, and it is understandably wary of precedents created should it authorise subdivisions.1

That concern is evident in its decision to refuse subdivision in this case.

[8]      Nonetheless, the Plan has long authorised family flats as a permitted activity, and the Council once interpreted these provisions as allowing small stand-alone residences for family members of the landowner.  In 2006 the Council proposed, as part of Variation 38, that the “permissive” provision for family flats be removed. The reason given was that it had allowed two dwellings per title.  I note that in its submissions before the Environment Court the Council submitted that such developments had frequently been followed by subdivision proposals.  Variation 38 was withdrawn in 2007 for unrelated reasons.   Beavon Investments has taken the point that although the Plan is unchanged the Council has since altered its interpretation, requiring that a family flat form part of the principal residence.

The Environment Court decision

[9]      The Environment Court did not focus on analysis of the Plan or its objectives. Its decision rested, on the face of it, on dictionary definitions of “flat”.2   Common to all of these definitions, the Court found, is a concept of a self-contained residence

forming part of a larger building.  The Court found support in provisions of the Joint

1   Adcock  v  Marlborough  District  Council  HC  Blenheim  CIV-2010-406-230,  24  May  2011;

Calapashi Holdings Limited v Marlborough District Council HC Blenheim CIV-2004-485-1419,

22 March 2005.   The evidence does not establish why the property in issue has already been reduced to 1.6440 ha.

2    Judy Pearsall (ed) Concise Oxford Dictionary (10th ed, Oxford University Press, Oxford, 1999);

Bryan A Garner (ed) Black's Law Dictionary (9th ed, West, St Paul, 2009); David Hay (ed) Words and Phrases Legally Defined (4th ed, LexisNexis, London, 2007);   and Tony Deverson and Graeme  Kennedy  (eds)  The  New  Zealand  Oxford  Dictionary  (Oxford  University  Press, Melbourne, 2005).

Family Homes Act 1964 and the Land Transfer Act 1952 which respectively define a flat and a flat or office-owning company.  It accordingly refused a declaration that the sleepout would, if fitted with a kitchen and used as a family flat, be a permitted use.  It did not find useful any of the authorities cited, including its own decision in Newman-Hall v Marlborough District Council.3

Is there a question of law?

[10]     Mr Radich argued that the appeal raises no question of law.   I reject that submission.  It is true that in this case a Council planner was permitted to offer his opinions about the meaning of the Plan, and even about the ratio of one of the Court’s decisions, but that does not make a factual issue of the Plan’s interpretation. I accept that the distinction between fact and law is not always easy and sometimes turns on policy considerations.4    It has been held, controversially, that the ordinary

meaning of words is a question of fact.5   But even if that is correct it does not take us

very far, for the language of a Plan must be considered in light of its objectives and policies and the empowering legislation.6   For that reason the construction of a Plan is a question of law.  I observe that if Mr Radich were correct, there would be no right of appeal from decisions such as this, in which the Environment Court acted in a first instance capacity.7    He also invited me to defer to the Environment Court’s expertise.  That I decline to do, on the ground that the Court’s undoubted expertise is not a significant consideration here.

Must a family flat form part of a larger dwelling?

[11]     The Council contends that a family flat must form a self-contained residence not  merely  within  a  larger  building  but  within  the  principal  residence.    The

Environment Court did not go quite so far, concluding more generally that it must

3   Newman-Hall v Marlborough District Council Decision WO71/2005.

4   J W Smith “The Analytic Distinction between Questions of Fact and Questions of Law” (2009) 34

Australian Journal of Legal Philosophy 69 at 72-75.

5   Brutus v Cozens [1973] AC 854 at 861.

6   Beach Road Preservation Society v Whangarei District Council (2000) 7 ELRNZ 1 (HC) at [26]- [30]; Powell v Dunedin City Council (2004) 11 ELRNZ 144 (CA) at [37].

7   An appeal under s 299 of the Resource Management Act 1991 is confined to questions of law.

form part of a larger building, but the Council understandably committed itself to its interpretation of the Plan.   The definition must be considered in context.   What matters to the Council is whether a landowner can erect, as of right, two physically separate residences on one title.  From the Council’s perspective, it will not do if the second residence might form part of a non-residential building which is a permitted use, such as a workshop or barn.

[12] As Mr Radich submitted, the definition of “residential unit”, quoted at [5] above, begins by establishing clearly that a residential unit is a single self-contained housekeeping unit and includes a family flat. If things rested there, it would be plain that a family flat is not a permitted use where there is already a residential unit on the relevant title.

[13]     But the definition goes on.  The sentence “Where more than one kitchen is provided on the site, other than a kitchen facility for a family flat there shall be deemed to be more than one residential unit” is badly punctuated but clearly enough serves the primary purpose of deeming there to be one residential unit per kitchen.  It then excepts from that rule a kitchen for a family flat, meaning that such a kitchen is not counted when applying the rule.

[14]     Several propositions follow, as a matter of construction.  A family flat, being a family flat which is by definition a single self-contained housekeeping unit, is a residential unit as defined.  Such a flat will contain a kitchen, that being integral to a self-contained housekeeping unit.   And that kitchen will not be counted when applying the rule that there is deemed to be one residential unit per kitchen.  Again as  a  matter  of  construction,  it  does  not  follow  that  a  family  flat  cannot  be  a residential unit.

[15]     The Council has seized upon this construction, submitting that under the first sentence of the definition a family flat is always a residential unit.  This argument proves too much.  As Mr Clark argued, it would make redundant the words “other than a kitchen facility for a family flat”.   Those words are intended to serve a purpose, that of allowing a landowner to build a family flat as of right as an adjunct to a principal dwelling by excluding such a flat from the definition of residential

unit.  Indeed, the Council has always accepted, as Mr Radich did before me, that the Plan does create an exception for a family flat, meaning that such flat is a permitted use as an adjunct to a principal residence on the same title.  That approach does no violence to the first sentence of the definition if one posits that, like a holiday home, a family flat may be the only dwelling on the relevant title.  I observe that insofar as the Plan contemplates that possibility, it necessarily recognises that a family flat may be a separate building.

[16]     In his evidence the Council planner, Mr Constantine, argued that the deeming provision is for the case where there are two kitchens in a single housekeeping unit. I suspect him of ex post rationalisation.   There is no evidence that the Council anticipated such developments, or that they were thought to require an exception. After all, there can be no doubt that the Plan’s objectives include that of permitting a single dwelling house or housekeeping unit on a given title.

[17]     That brings me to the undefined term “family flat”.  There is no doubt that a

flat may form part of a larger residential complex.  The question is whether it must.

[18]     Again, context matters.  There is no evidence that the Marlborough District Council established the family flat exception to meet a demand for family flats forming part of larger residential complexes.   Far from it, the Council’s former interpretation of the Plan and its decision to promote Variation 38 together evidence a demand for small stand-alone residences for dependant family members.  There is force in Mr Clark’s submission that “family flat” in this setting is a euphemism for what would once have been called a granny flat, which might well be a small stand- alone residence.  Certainly nothing in the material before me suggests an intention to exclude such a flat from the definition.  That is unsurprising.  The definition pertains, after all, to a certificate of title, which in a predominantly rural district self-evidently may comprise a large area of land well capable of accommodating more than one stand-alone residence.

[19]     The definitions relied on by the Environment Court are mostly drawn from English  usage,  but  in  that  jurisdiction  land  use  is  more  intensive  than  was traditionally the case in New Zealand and there is a long tradition of rent control

legislation  which  required  courts  to  deal  with  parts  of  houses  let  as  separate dwellings.  For example, the definition that the Court cited from Words and Phrases Legally Defined was “a separate set of premises...which...forms part of a building...” but that definition was drawn from the Landlord and Tenant Act 1987.  Even in that setting the central point is not the property’s physical characteristics but whether it was let as a separate dwelling, “a place where one lives, regarding and treating it as

home.”8    The Environment Court also cited the Concise Oxford Dictionary, which

defines “flat” as “a set of rooms comprising an individual place of residence within a larger building”, but the same dictionary goes on to note that in Australia and New Zealand the verb “flatting” means to share a flat,9  hinting that “flat” may have a different meaning in this country.  Sure enough, the New Zealand Oxford Dictionary defines the term somewhat more broadly as “a set of rooms, usually on one floor, used as a residence” and recognises even more broadly that to go flatting is to leave home to live in shared accommodation with peers.10   It also defines “granny flat” as “a self-contained flat in (or in addition to) a person’s house where an elderly relative may  live  independently....”    These  definitions  emphasise  that  a  flat  must  be  a separate housekeeping unit, not that it must be part of another building.  The Collins English Dictionary defines a flat not only as a portion of a house used as separate living quarters, a usage which it attributes to Britain and New Zealand, but also as “a

house shared with people who are not members of one’s family”.  The latter usage is attributed to New Zealand.11   It is true that the Joint Family Homes Act 1964 defines a flat as a part of a building that is used as a separate dwelling, but the apparent purpose of that definition was to extend to such a flat the ability of a husband and wife to settle an interest in land as a joint family home.   As Mr Clark submitted, there is no reason to suppose that the drafter of the Plan would have had that

definition in mind.

8   Uratemp Ventures Ltd v Collins [2001] UKHL 43 at [3] per Lord Irvine.

9   Judy Pearsall (ed) Concise Oxford Dictionary (10th ed, Oxford University Press, Oxford, 1999).

10    Tony  Deverson  and  Graeme  Kennedy  (eds)  The  New  Zealand  Oxford  Dictionary  (Oxford

University Press, Melbourne, 2005).

11    Collins English Dictionary (3rd ed, Harper Collins, Glasgow, 1991).

[20]     I observe that the District Plans of a number of other local authorities also admit family flats, and in each case a family flat may be a separate dwelling.12    In some cases the relevant Plan also limits the size of the flat – as Variation 38 would have done - and requires that it be relocatable.  That too points to a distinctive New Zealand usage.  Finally, I note the Environment Court decision in Newman-Hall, a case involving the same Council  but  a different  Plan, the Marlborough  Sounds Resource Management Plan.13   The Court there accepted counsel’s submission that a family flat may be a separate dwelling.  I accept that the point was raised in that case as part of a baseline argument - the case involved a subdivision - and the two Plans are not identical, but both Plans admit a family flat, an undefined term, in connection with a principal dwelling.

[21]     For these reasons I consider that the Environment Court was wrong to hold that a family flat must be part of a larger building.

[22]     It does not follow that any separate residence may be a family flat.  Counsel told me that the Plan contains no provisions prescribing that a family flat must not exceed  a certain  size or must  be relocatable,  but  Mr Clark  accepted  that  some restrictions are inherent in the definition.   I agree.   As Mr Radich submitted, the definition must be interpreted in light of the objective of preserving the Rural 3 zone. If it is to be a permitted use where there is already a dwelling on the title a family flat must be an adjunct to the principal residence, a subordinate dwelling.  That follows when one inquires whose family is to use the flat; it is the family of the owner of the land and occupier of the principal residence.   That concept may have several dimensions, including by way of illustration the relationship of the occupants to one another (which relationship may be not only familial but also dependant) and the size and design of the flat, its physical relationship and that of its services to the principal

dwelling, and its intended lifespan on the site.

12    The Clutha District Plan, the Christchurch City Plan, the Horowhenua District Plan, the Upper Hutt City Plan, the Selwyn District Plan, the Central Otago District Plan and the Kapiti Coast District Plan.

13    Newman-Hall & Ors v Marlborough DC Decision WO71/2005.

Relief

[23]     I have found that the Environment Court erred, but for the reasons just given I do not accept that the Court ought to have granted the declaration sought, or that this  Court  should  do  so  on  appeal.     The  conclusion  that  a  self-contained housekeeping unit  may be a family flat  although physically separated  from  the principal residence does not lead inexorably to the result that the original house in this  case is  (or will  be  on  installation  of a  kitchen)  a family flat  and  hence a permitted use.   The ultimate outcome may turn on factual issues which the Environment Court was not asked to address, concerning the intended use and characteristics of the original house.

[24]     I note too Mr Radich’s submission that the appellant may confront a further difficulty arising from the condition requiring removal of the kitchen on conversion of the original house to a sleepout.   He contends that in these circumstances the appellant may not insist on using the original house for a family flat but must seek dispensation from the Council.  Mr Clark disagreed, maintaining that the condition bound the former owners but not the appellant.  I record only that the Environment Court may be required to address this issue.

[25]     Counsel agreed that if I found for the appellant the case should be remitted to the Environment Court for further consideration.  I so order.

Costs

[26]     The appellant has succeeded in part and is entitled to costs on a 2B basis. Counsel may file memoranda if they cannot agree.

Miller J

Solicitors:

Wisheart Macnab & Partners, Blenheim for Appellant

Radich Law, Blenheim for Respondent